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Amendment to Rule 4.33 – Dismissal for Long Delay

A recent amendment to Rule 4.33 (dismissal for long delay) of the Alberta Rules of Court has been introduced. At first glance, the amended Rule 4.33 looks like it has been completely revamped, however, the core of it remains the same. The biggest change appears to be the addition of a ‘suspension period’, with the Rule setting out the procedure under which the period comes to be operative and how it is applied.

The use of the term ‘suspension period’ is new to the Rules. Prior to the amendment, the Court was often faced with decisions as to whether a standstill agreement had been reached between the parties that allowed for a delay in the action beyond three years. One of the issues to consider in that analysis was whether an express written agreement had been reached with respect to a delay in the entire action and not just one step.

The amended Rule 4.33 now sets out that the three year period for delay will not operate when an agreement has been reached that contemplates a specific date or an event happening. This seems to suggest the parties do not have to turn their mind to a delay in the action overall. Further, we interpret the amended Rule to mean that the suspension period can be carved out of the three years, such that, on the expiry of a certain date, if nothing has been done to advance the action, the clock begins where it left off prior to the suspension period being put in place.

Procedurally, under the amended Rule, parties can consent to a written agreement for a “suspension period’. Alternatively, a respondent (defined in the rule as a party who has filed a commencement document), may serve an applicant (a party to an action who makes an application to dismiss the action for delay) with a written proposal that sets out a suspension period and requests that that period not be included in computing the period of time for long delay. The applicant must respond to this proposal within two months. If the applicant disagrees with it or does not respond, the respondent may then apply for a Court Order.

Unfortunately, the amendment does not provide any further guidance on one of the more contested issues under Rule 4.33, namely, what constitutes a ‘significant advance’ in the action. As most know, however, the Alberta Court of Appeal has affirmed that a “functional approach” should be taken in determining whether an action has been significantly advanced, leaving the court with wide discretion to consider any step that is seen to bring an action closer to resolution.

The recent amendment appears to provide a new vehicle for parties to keep an action alive. This is balanced, however, by parameters that prevent parties from completely resetting the clock when agreeing to postpone a certain step. While it remains to be seen how these amendments will be applied and whether there will be any significant impact in dealing with long delays, going forward it will be important to have clear communication with opposing counsel regarding timelines agreed to within an action.